Tuesday, March 11, 2008

Anxious Scrutiny

If a public body has interfered with your human rights the Courts must look, with “anxious scrutiny”, to see if the interference was really necessary to achieve one or more of the stated aims recognised by the Convention. If the answer is no, the Courts will find that the public body has acted unlawfully.

Interference with Protocol 1, Article 1 is permissible only if what is done:

A. has its basis in law; and

B. is done to secure a permissible aim set out in the relevant Article, for example for the prevention of crime, or for the protection of public order or health; and

C. is necessary in a democratic society, which means it must fulfil a pressing social need, pursue a legitimate aim and be proportionate to the aims being pursued.

One advantage for the citizen is that the burden of argument shifts from the claimant to the defendant public authority. The claimant no longer has to demonstrate unreasonableness, but rather the defendant needs to produce a justification for the decision that satisfies the court that it was properly made.

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